IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
December 22, 1998
EVELYN F. BINKOWSKI AND JOHN BINKOWSKI, INDIVIDUALLY AND AS HUSBAND AND WIFE, AND ROSEMARIE BELONSOFF AND JOHN BELONSOFF, INDIVIDUALLY AND AS HUSBAND AND WIFE,
THOMAS A. MARINI AND POL-RO, INC.,
The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge
HONORABLE JEROME B. SIMANDLE
Doc. No. 15
O P I N I O N
KUGLER, United States Magistrate Judge
This matter is before the Court upon motion by N. Nicholas Hendershot, Esquire, attorney for Defendants, for an order disqualifying Edward C. Logan, Esquire, attorney for Plaintiffs, from this case. For the reasons discussed below, Defendants' motion is GRANTED. Facts and Procedural History
This action arises from a two-vehicle accident that occurred in Burlington, New Jersey. See Statement of Facts and Brief in Support of Defendants' Motion to Disqualify Edward C. Logan, Esquire, as Counsel for Plaintiffs ("Defendants' Brief") at 1. *fn1 Plaintiff John Belensoff was driving a Winnebego in which Plaintiffs Rosemarie Belensoff, John's wife, Evelyn Binkowski and John Binkowski were passengers. See Certification of Edward C. Logan in Opposition to Defendants' Motion to Disqualify Plaintiffs' Counsel ("Logan Certification") at ¶ 2. *fn2 The accident occurred when Defendant Thomas Marini collided with the Winnebego while driving a Ford station wagon owned by his employer, Defendant Pol-Ro, Inc. ("Pol-Ro"). See Defendants' Brief at 1-2. The investigating police officer cited Plaintiff John Belensoff for careless driving. See id. at 2. This action followed.
Plaintiffs Evelyn Binkowski and John Binkowski filed a complaint against Defendants in this Court alleging that they were severely injured in the accident. Plaintiffs Rosemarie Belensoff and John Belensoff filed a separate complaint alleging that Rosemarie Belensoff was injured in the accident and asserting a claim for loss of consortium on behalf of John Belensoff, the driver of the Winnebego. The two actions were consolidated on or about September 25, 1998. All four Plaintiffs are represented by Edward C. Logan, Esquire.
Defendants filed a third-party complaint against John Belensoff in the Binkowski action and asserted a counterclaim against him in the Belensoff action claiming that the accident was caused by John Belensoff's negligence in operating the Winnebego.
At a pretrial conference held before the Court, counsel for Defendants raised the issue that Mr. Logan's representation of both the driver and the passengers in this action is a conflict of interest. This motion followed.
In their motion papers, Defendants argue that Mr. Logan's representation of both the driver and passengers in this action is a violation of Rule 1.7 of the Model Rules of Professional Conduct as Adopted by the New Jersey Supreme Court ("RPC"). See Defendants' Brief at 3.
Plaintiffs argue that no such conflict exists, and, even if there is a conflict, Mr. Logan has made arrangements to have substitute counsel represent Mr. Belensoff on his consortium claim. See Memorandum of Law in Opposition to Defendants' Motion to Disqualify Plaintiffs' Counsel ("Plaintiffs' Brief") at 5. Mr. Logan claims that he can continue to represent the three other plaintiffs in this action even if he is disqualified from representing Mr. Belensoff because he has not had any discussions regarding the accident with his client, Mr. Belensoff, one of the two drivers involved in the accident. See id. at 4. *fn3
"The Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court shall govern the conduct of the members of the bar admitted to practice in this Court. . .." Rule 103.1(a) of the Local Rules of the United States District Court for the District of New Jersey. Attorney conflict of interest is governed by RPC 1.7, which provides, in pertinent part:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:
(1) the lawyer reasonable believes that representation will not adversely affect the relationship with the other client; and
(2) each client consents after a full disclosure of the circumstances and consultation with the client . . ..
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes that representation will not be adversely affected; and
(2) the client consents after a full disclosure of the circumstances and consultation with the client . . .. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and the risks involved.
(c) This rule shall not alter the effect of case law or ethics opinions to the extent that:
(1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and
(2) in certain cases or situations creating an appearance of impropriety rather than an actual conflict, multiple representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses a substantial risk of disservice to either the public interest or the interest of one of the clients.
The New Jersey Advisory Committee on Professional Ethics has repeatedly issued opinions that interpret RPC 1.7 as prohibiting an attorney from representing both a driver and a passenger involved in a motor vehicle accident against another driver or owner. See Advisory Committee on Professional Ethics Opinion 156 (July 24, 1969); Advisory Committee on Professional Ethics Opinion 188 (Nov. 12, 1970); Advisory Committee on Professional Ethics Opinion 248 (Jan. 25, 1973); Advisory Committee on Professional Ethics Opinion 253 (April 19, 1973); Advisory Committee on Professional Ethics Opinion 373 (July 21, 1977). "The conflict of interest in such representation is inherent." In re Shaw, 88 N.J. 433, 441, 443 A.2d 670, 674 (1982) (citations omitted). Even when the driver and passenger have agreed not to sue one another for injuries sustained in the accident, the dual representation is prohibited. See Advisory Committee on Professional Ethics Opinion 188 (Nov. 12, 1970). "Public policy precludes an exception by waiver and consent." Id.
The New Jersey Supreme Court has held that such dual representation of the driver and injured passengers subjects an attorney to discipline for violation of RPC 1.7. See In re Patrick M. Pajerowski, __ N.J. __, __ A.2d __, 1998 WL 833782, *__ (N.J. Dec. 8, 1998); In re Terner, 120 N.J. 706, 712-13, 577 A.2d 511, 515 (1990). The attorney who undertakes such dual representation does so "at his own peril" because he may be forced to withdraw from the case and forfeit all fees. See DeBolt v. Parker, 234 N.J. Super. 471, 484-85, 560 A.2d 1323, 1330 (N.J. Super. Ct. 1988) (quoting Goodwin Motor Corp. v. Mercedes Benz of N.A. Inc., 172 N.J. Super. 263, 273, 411 A.2d 1144 (App. Div. 1980)).
Mr. Logan's representation of the driver, John Belonsoff, and the passengers, Rosemarie Belensoff, Evelyn Binkowski and John Binkowski, is dual representation that is prohibited by the RPC 1.7 as interpreted by the New Jersey Supreme Court and the Advisory Committee of Professional Ethics.
The only narrow exception to this rule is where liability is obvious and there is no possibility that a passenger may have a claim against the driver. See Advisory Committee on Professional Ethics Opinion 248 (Jan. 25, 1973); Advisory Committee on Professional Ethics Opinion 253 (April 19, 1973).
That exception does not apply here. Plaintiffs argue that, according to their expert, Defendant Thomas Marini caused the accident when he slammed into the rear of Plaintiffs' Winnebego. Plaintiffs' Brief at 4-5. However, Plaintiffs ignore the fact that the investigating officer at the scene of the accident cited Mr. Belonsoff for careless driving. See Defendants' Brief at 2. Moreover, there is nothing in the record before the Court indicating that Mr. Marini received any citation. Additionally, the State of New Jersey Motor Vehicle Accident Diagram attached to Defendants' Brief indicates that the accident occurred when Plaintiffs' Winnebego made a left turn from the right lane, thus, cutting-off Defendants' station wagon. The Court is not sitting as the trier of fact and expresses no opinion as to the ultimate cause of the accident. However, it is clear from the record before the Court that the cause of the accident is at a minimum a disputed question of fact for the jury to determine. At this point the Court cannot determine whether Plaintiff or Defendant caused the accident. Furthermore, the Court cannot make that determination based on Mr. Logan's assessment of the facts particularly since Mr. Logan, by his own admission, has not yet discussed the circumstances surrounding the accident with his client.
Liability here is not so obvious as to preclude the passengers from asserting a claim against the driver and, thus, the exception to the general rule precluding an attorney from representing both the driver and injured passengers is not applicable under these facts.
Plaintiffs argue in the alternative that Mr. Logan should be permitted to continue his representation of the passengers as long as he finds substitute counsel to represent Mr. Belonsoff. Mr. Logan's argument is without merit.
Where the Court finds that there is a conflict of interest in a lawyer representing several plaintiffs in one action, the lawyer must withdraw from the action completely because of the risk that the lawyer may have confidential information from his former client whose interests are or may be adverse to the remaining clients. See Advisory Committee on Professional Ethics Opinion 188 (Nov. 12, 1970); Weinberg v. Underwood, 101 N.J. Super. 448, 452-53, 244 A.2d 538, 540-41 (N.J. Super. Ct. 1968).
The Court finds incredible Mr. Logan's claim that he has no substantive information from Mr. Belonsoff regarding the circumstances of this accident. The accident occurred over two years ago and the case was referred to Mr. Logan in May of 1998. See Defendants' Brief at 1. Mr. Logan was obligated under Fed. R. Civ. P. 11(b) to make a reasonable investigation into Plaintiffs' claims before he signed and filed the complaint. At a minimum, a reasonable investigation would include at least one conversation with the one driver involved in the accident who was Mr. Logan's client, Mr. Belonsoff. Moreover, there is at least a possibility, if not a probability, that the passengers' interests will at some point become adverse to Mr. Belonsoff's interests. If that time comes, Mr. Logan's continued representation of the passengers against his former client in the same action would at least raise an appearance of impropriety.
For the reasons discussed above, the Court finds that Mr. Logan is disqualified from representing any party in this consolidated action. Plaintiffs have thirty days to hire substitute counsel. The Court will convene a status conference on February 3, 1999 at 2:45 p.m. New counsel shall enter an appearance in this case and appear on behalf of the Plaintiffs at the February 3, 1999 status conference. If Plaintiffs do not have new counsel by the February 3, 1999 status conference, Plaintiffs shall appear at the conference in person.
THIS MATTER having been brought before the Court upon motion by N. Nicholas Hendershot, Esquire, attorney for Defendants, for an order disqualifying Plaintiff's counsel, Edward C. Logan, Esquire, from representing any party in this case; and the Court having considered the moving papers and the opposition thereto; and for the reasons stated in the opinion accompanying this Order;
IT IS THIS 22nd day of December, 1998 hereby ORDERED that Defendants' motion is GRANTED; and
IT IS FURTHER ORDERED that the settlement conference scheduled in this case for February 3, 1999 shall be converted into a status conference at which Plaintiffs new counsel shall appear on their behalf and at which the Court shall amend the scheduling order; and
IT IS FURTHER ORDERED that if Plaintiffs do not hire substitute counsel by the February 3, 1999 status conference, Plaintiffs shall appear at the conference without counsel.
ROBERT B. KUGLER United States Magistrate Judge
cc: Honorable Jerome B. Simandle